Gujarat High Court
State Of Gujarat vs Sabbirbhai Sajuddin Vora & on 12 February, 2013
Author: Harsha Devani
Bench: Harsha Devani
STATE OF GUJARAT....Appellant(s)V/SSABBIRBHAI SAJUDDIN VORA R/CR.A/586/1991 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 586 of 1991 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ STATE OF GUJARAT....Appellant(s) Versus SABBIRBHAI SAJUDDIN VORA & 1....Opponent(s)/Respondent(s) ================================================================ Appearance: MR HK PATEL, PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR AMRISH K PANDYA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 12/02/2013 ORAL JUDGMENT
1. This appeal is directed against the judgment and order dated 1st April, 1991, passed by the learned Special Judge, Panchmahal at Godhra, in Special (ESTP) Case No.4 of 1989 whereby he has acquitted the accused of the offences punishable under clauses 7, 5, 3(3), 4 and 35 of the Fertiliser (Control) Order, 1985 (hereinafter referred to as the Order ).
2. The prosecution case is that the complainant, Shri M. M. Patel, who was discharging duties as Agriculture Inspector at Dahod, and had jurisdiction over Devgadh Baria, Santrampur, Jhalod, Dahod and Limkheda talukas and had been authorized to carry out duties of an Agriculture Inspector under a notification issued by the Government of India under the Fertiliser said Order. Earlier, Shri M.D. Chauhan, Agricultural Inspector was in charge. On 23rd July, 1988, Shri Chauhan had gone to mauje Mandav, Taluka: Bariya, in connection with work relating to quality control, at that time he had visited the establishment of the accused No.1, Sabbirbhai Sajuddin Vora, at mauje Mandav. At that time the accused No. 2-Firozbhai Sajuddin Vora was present at the shop and it appeared that he was selling fertilisers and charging higher prices from the consumers and was not issuing bills and was not maintaining any kind of record. In this regard, upon asking him to produce the licence for selling and storing such fertilisers, he did not have any such licence. Moreover, he was not even in a position to show any stock statement, bill book, etc. Thus, the accused were illegally selling fertilisers at a rate higher than the fixed rate and were not maintaining stock board or issuing bills nor were they maintaining any record in accordance with law and as such had committed the offences punishable under clauses 7, 3, 4, 5 and 35 of the Fertiliser (Control) Order, 1985. Upon inspecting the shop of the accused, four sacks, each filled with 50 kilograms of Urea , together weighing 200 kilograms and another bag containing 22 kilograms of fertiliser were found from the shop. In this manner, in all, 222 kilograms of Urea was found in respect of which a panchnama came to be drawn and the stock of Urea came to be seized. Thus, by committing breach of the above referred clauses, the accused had committed breach of section 3 of the Essential Commodities Act which was an offence punishable under section 7 of the said Act.
3. It is the case of the prosecution that the Agriculture Inspector had visited the shop of the accused on the basis of an anonymous application, which has been produced at Exhibit-30. The panchnama under which the aforesaid 222 kilograms of Urea came to be seized in the presence of panchas has been produced at Exhibit-19. A sample of the fertiliser seized from the accused came to be sent for the analysis and a sample was also provided to the accused and two samples were retained. At the time, when the complainant visited the shop of the accused, a consumer Somabhai Bapubhai was standing there and he, in the presence of the complainant, had stated that he had purchased the stock of Urea from the accused. Hence, the complainant had recorded his statement and the same has been produced at Exhibit-20. The said Somabhai Bapubhai had also been taken as panch while seizing the 222 kilograms of Urea from the shop of the accused. Thereafter, statements of the witnesses as well as statements of the two accused persons came to be recorded. A sample of the fertiliser came to be forwarded to the concerned laboratory for analysis thereof. The Urea weighing 222 kilograms which came to be seized under the Panchnama was detained and the accused were directed to keep the custody of the same. The notice issued in respect thereof has been produced at Exhibit-36. The two bills under which the stock of fertiliser had been purchased from M/s. Mohanlal Mahasukhlal of Godhra were also produced. The statement of the Dhirajlal Mohanlal, a partner of M/s Mohanlal Mahasukhlal, has also been recorded and produced on the record. After obtaining necessary sanction from the Director of Agriculture, Gujarat State, Ahmedabad, the complaint came to be lodged against the accused for breach of clauses 7, 5, 3(3), 4 and 35 of the Fertiliser(Control) Order, 1985, and under section 3 of the Essential Commodities Act, which amounts to an offence under section 7 of the said Act.
4. Before the trial court, the prosecution examined, in all, six witnesses and produced certain documentary evidence on the record. The learned Special Judge, after appreciating the evidence on record, found that the prosecution has failed to establish the charges levelled against the accused beyond reasonable doubt and acquitted them.
5. Mr. H.K. Patel, learned Additional Public Prosecutor, assailed the impugned judgment and order by submitting that the learned Judge has given undue weightage to the depositions of the hostile witnesses, while arriving at the conclusion that the charges against the accused were not proved. Referring to the deposition of P.W.2-Somabhai Bapubhai, it was submitted that the said witness is an independent witness, who has deposed that he had purchased fertiliser from the shop of the accused at the rate of Rs.128/- for one bag of Urea and this evidence has not been shaken during the course of cross-examination of the said witness. It was submitted that on a conjoint reading of the panchnama and the testimony of the said witness, it is apparent that the prosecution has duly established that 222 kilograms of Urea was found from the shop of the accused and that the accused had sold another 50 kilograms of Urea at the rate of Rs.128/ for one bag of fertiliser to witness-Somabhai Bapubhai, on the same day without issuing any bill. It was submitted that the testimony of Somabhai Bapubhai finds further corroboration in the deposition of the P.W.6 M. D. Chauhan, Agriculture Inspector, who investigated the offence in question.
6. Referring to the deposition of P.W.5 Dhirajlal Mohanlal, it was submitted that from the evidence of the said witness the prosecution has duly established that on 18th July, 1988, a dealer had purchased fertiliser in the name of an agriculturist under bills No. 1105 and 1106 which have been produced on record at Exhibits 27 and 28. Reference was made to the statement of the said witness (Exhibit-26) which was recorded by the Agriculture Inspector, wherein it has been stated that on 18th July, 1988, Shri Sabbirbhai Sajuddin Vora had purchased fertiliser in the name of Himabhai Talshi under bill No. 1105 by making payment in cash. Hence, the name of Himabhai is written thereon. It was submitted that, thus, from the deposition of the said witness read along with his statement, the prosecution has duly established that it was the accused who had purchased the fertiliser from M/s Mohanlal Mahasukhlal under the bills No. 1105 and 1106. It was submitted that when the prosecution through the deposition of the witness-Somabhai Bapubhai has duly established that the accused had purchased the fertiliser from M/s Mohanlal Mahasukhlal under the bills No. 1105 and 1106 and sold the same to Somabhai Bapubhai at a higher rate, the alleged offences stood duly established. Under the circumstances, the learned Special Judge was not justified in disbelieving the evidence led by the prosecution and giving undue weightage to the depositions of the hostile witnesses. Under the circumstances, the appeal deserves to be allowed and the order of acquittal is required to be reversed and the accused are required to be convicted for the alleged offences.
7. Vehemently opposing the appeal Mr. Amrish K. Pandya, learned Advocate for the respondents, submitted that in the present case there is a breach of the mandatory provision of clause 28(3) of the Order, inasmuch as, after seizing the fertiliser the Agriculture Inspector has not forthwith reported the fact of such seizure to the Collector as contemplated under sub-clause 3 of clause 28 of the said Order. According to the learned advocate, the said provision is mandatory in nature and non-compliance thereof would vitiate the entire proceedings.
8. Next, it was submitted that witness Somabhai Bapubhai has deposed that he had purchased a bag of fertiliser, weighing 50 kilograms, and no panchnama has been recorded in this regard for showing that such 50 kilograms of fertiliser was in the possession of the said witness. It was submitted that the bills No.1105 and 1106 on which reliance has been placed by the prosecution, reveal purchase of, in all, 200 kilograms of fertiliser, whereas the stock which is alleged to have been seized weighs 222 kilograms. If the amount of 50 kilograms of fertiliser alleged to have been sold to Somabhai Bapubhai is added thereto, the total stock comes to 272 kilograms. However, the prosecution has not established that the accused had purchased such a large quantity of fertiliser. Under the circumstances, the panchnama which is silent as regards 50 kilograms of fertiliser allegedly sold to Somabhai Bapubhai, lacks credibility and as such cannot be relied upon. Referring to the bills No.1105 and 1106 (Exhibits 27 and
28), it was pointed out that such bills have been issued in the name of Himabhai Talshi and Bhemabhai Talshi. Attention was invited to the notice issued by the Agriculture Inspector for confiscation of the stock of fertiliser under clause 28(1)(d) of the Order, it was pointed out that the said notice refers to the stock of fertiliser lying in the premises of Himabhai Talshi. Under the circumstances, even according to the Agriculture Inspector, the stock was lying in the premises of Himabhai Talshi and not in the shop of the accused. It was further pointed out that it has come on record that the shop of the accused is situated on the same premises as the house of Hemabhai Talshi and Hemabhai Talshi is the landlord. It was urged that the prosecution has failed to prove beyond reasonable doubt that the fertiliser was lying in the shop of the accused and not in the house of Hema Talshi. Reference was made to the reasons recorded by the learned Special Judge while holding that the charges levelled against the accused have not been established to submit that sufficient and cogent reasons have been given by the learned Special Judge while arriving at the conclusion that the charges levelled against the accused have not been established and in the absence of any perversity in the findings recorded by the learned Special Judge there is no warrant for interference by this court. In support of such submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of State of Goa v. Sanjay Thakran and Another, 2007 (3) SCC 755, for the proposition that the appellate court can review the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse and the court has committed a manifest error of law and ignored the material evidence on record and merely because two views are possible, the court of appeal cannot take a view which would upset the judgment delivered by the court below. It was, accordingly, urged that the appeal being devoid of merit, deserves to be dismissed.
9. In the facts of the present case, as noted hereinabove, the charges levelled against the accused are of breach of clauses 7, 5, 3(3), 4 and 35 of the Fertiliser (Control) Order, 1985, which amounts to an offence under section 7 of the Essential Commodities Act.
10. Clause 7 of the Order provides that no person, including a manufacturer, a pool handling agency, a wholesale dealer and a retail dealer shall offer for sale or carry on the business of selling of fertilisers at any place as wholesale dealer or retail dealer except under and in accordance with the conditions of a certificate of registration granted to him under clause 9.
11. Clause 3(3) of the Order provides that no dealer, manufacturer or pool handling agency shall sell or offer for sale any fertiliser at a price exceeding the maximum price or rate fixed under the said clause.
12. Clause 4 of the Order provides for display of stock position and price list of fertilisers and imposes an obligation upon every dealer, who makes or offers to make a retail sale of any fertiliser, to prominently display in his place of business,
(a) the quantities of opening stock of different fertilisers held by him on each day;
Explanation.- xxxxx
(b) a list of prices or rates of such fertilisers fixed under clause 3 and for the time being in force.
13. Clause 5 of the Order provides for issue of cash/credit memorandum and mandates that every dealer shall issue a cash or credit memorandum to a purchaser of a fertiliser in such manner as the Controller may direct. [Form M]
14. Clause 35 of the Order makes provision for maintenance of records and submission of returns etc.
15. The evidence on record has to be viewed in the light of the above referred provisions to ascertain as to whether there is any breach thereof by the accused.
16. For the purpose of establishing the above referred offences, it is necessary for the prosecution to first establish that the accused were engaged in the business of selling fertilisers at the shop in question. Once, the said burden is discharged, the prosecution is required to establish that the provisions of clauses 3, 4, 5 and 35 of the Order have not been duly followed by the accused.
17. The evidence on record reveals that it is the case of the prosecution that on 23rd July, 1988, at that time when the Agriculture Inspector visited the premises of the accused No.1, the accused No.2 was present and a stock of 222 kilograms of Urea was found in the said premises, out of which there were four bags of Urea each weighing 50 kilograms and one bag containing 22 kilograms of loose fertiliser. It was further the case of the prosecution that Somabhai Bapubhai, a consumer had come out from the shop after purchasing one bag containing 50 kilograms of fertiliser at the rate of Rs.128/- per bag. For the purpose of establishing the said fact, the prosecution has placed reliance upon the panchnama (Exhibit 19) and the depositions of witness-Somabhai Bapubhai and the Agriculture Inspector. In this regard, it may be noted that in the panchnama it has been stated that in the shop of accused No.1, four bags, each filled with 50 kilograms of Urea, and one half-filled bag of Urea weighing 22 kilograms were found. In the panchnama it is also recorded that from the said shop Urea is being sold without issuing bills to the consumers and each bag is sold at the rate of Rs.128/-. However, the panchnama is totally silent as regards the source of such facts.
18. In support of the said panchnama, the prosecution has examined witness-Somabhai Bapubhai at Exhibit 18. He has deposed that on 23rd July, 1988, in the morning he had gone to purchase fertiliser at Mandav village. He had gone to the shop of Sabbirbhai Sajuddin Vora (the accused No.1) for the purpose of purchasing fertiliser. At that point of time, the Agriculture Inspector had not come. After he had purchased the fertiliser, the Inspector had come and had asked him as to what he had purchased and he had replied that he had purchased fertiliser. Upon his asking the rate at which he has purchased the fertiliser, he informed that he has purchased one bag of fertiliser at the rate of Rs.128/-. He has further submitted that these persons had taken samples of the fertiliser and put them in a bag and sealed them and drawn a panchnama. That one Mulji Devsing had also come to purchase fertiliser, however, since the stock of the fertiliser was exhausted, he could not purchase the same. In his cross-examination it is revealed that the house of Hima Talshi and Bhema Talshi is situated at Mandav village and that the shop of accused No.1 is situated in their house. He has denied the suggestion that he had not purchased the fertiliser from the accused on 23rd July, 1988.
19. On a plain reading of the deposition of the said witness along with the panchnama, it is apparent that in the panchnama it has been stated that the fertiliser is sold at the rate of Rs.128/- without bills being issued, however, nothing has been stated therein as to on what basis such facts have been recorded. Such facts have been brought on record only through the deposition of witness-Somabhai Bapubhai. It may be pertinent to note that sub-clause(3) of clause 3 of the Order prohibits a dealer, manufacturer or pool handling agency from selling or offering for sale any fertilisers at a price exceeding the maximum price or rate fixed under this clause. Under the circumstances, for the purpose of establishing an offence under the Act, the prosecution is first required to establish as to what was the maximum price or rate fixed for the fertiliser in question, whereas a perusal of the record of the case reveals that no evidence worth the name has been led by the prosecution to establish the maximum price or rate fixed in respect thereof. Under the circumstances, the prosecution has failed to establish that the charge regarding breach of clause 3(3) of the Order.
20. At this juncture, it may also be germane to refer to the testimony of Himabahi Talshi, who has been examined at Exhibit 21. This witness has deposed that his house is situated at Mandav village and that the eastern side of the said house has been rented to the accused No.1- Sabbirbhai Sajuddinbhai, wherein the said accused has established a shop and is carrying on his business and in the said shop only provisions are sold and no fertiliser is sold. He has also deposed that he (the witness) is carrying on agricultural activities and on 23rd July, 1988, a person from the Department of Agriculture had come to his house and asked him as to why he had purchased the fertiliser, in response to which he had stated that he had purchased the fertiliser for agricultural purposes. He had denied that the persons from the Department of Agriculture had seized the stock of fertiliser from the shop of accused No.1-Sabbirbhai Sajuddinbhai. The said witness has not supported the prosecution case and has been declared hostile. In his cross-examination by the learned Public Prosecutor nothing substantial has been elicited by the prosecution in support of its case. In his cross-examination by the learned Advocate for the accused, it is revealed that he and his brother jointly own 10 to 12 acres of land and that the accused No.1 is carrying on the business of selling food-grains, provisions and spices and that he does not sell fertilisers. Keeping in mind the deposition of the said witness, it may be pertinent to note that in the notice issued by the Agriculture Inspector ordering detention under clause 28 of the Order, the accused have been ordered to detain the stock of 222 kilograms of Urea lying the premises of the house of Hima Talshi. Thus, the testimony of the said witness that the fertiliser had been purchased by him is corroborated by the notice issued by the Agriculture Inspector.
21. Next it may be noted that the stock of fertiliser is alleged to have been purchased from a firm named M/s. Mohanlal Mahasukhlal. In this regard, the prosecution has examined witness-Dhirajlal Mohanlal Parikh, a partner of the said firm at Exhibit-25. He has deposed that on 23rd July, 1988, a dealer had purchased fertiliser in the name of agriculturists under bills No. 1105 and 1106. At this juncture, reference may be made to the bills bearing No.1105 and 1106, which reveal that the same have bee issued in the name of Hima Talshi and Bhema Talshi, respectively, and the same have been issued for purchase of two bags of Urea, at the rate of Rs.113/- per bag. Witness-Dhirajlal Mohanlal has deposed that he is not in a position to identify as to whether it was the accused, who had purchased the fertiliser from him under the said bills. In his cross-examination it is revealed that it is permissible for him to sell fertiliser from his shop to an agriculturist without a license, however, in case where a dealer wants to purchase fertiliser, it is necessary that he should be holding a licence and his license number is required to be noted. He has accepted that when a person comes to purchase fertiliser, it is his name that is reflected in the bill. He has accepted that in the bills No. 1105 and 1106, the names of Hima Talshi and Bhema Talshi are written. He has further submitted that he is not in a position to say as to who had come to purchase the goods under the said bills.
22. In the light of the aforesaid evidence, it is apparent that the fertilisers purchased vide bills No. 1105 and 1106 have been purchased in the names of Hima Talshi and Bhema Talshi. The prosecution is not in a position to establish that it was the accused persons who had purchased fertilisers under the said bills. From the notice issued by the Agriculture Inspector under clause 28 of the Order as well as from the deposition of Himabhai Talshi, it is established that the Himabhai Talshi had in fact purchased the fertiliser in question and that the same was stored in his premises. In the aforesaid premises, the prosecution has failed to prove that the stock of fertiliser was in fact lying in the premises of the accused and that the same had been purchased by them for the purposes of sale. As regards purchase of one bag containing 50 kilograms of fertiliser by Somabhai Bapubhai from the shop of the accused, there is no mention in the panchnama as regards such purchase nor has any panchnama been drawn in respect of the said 50 kilograms of fertiliser purchased by Somabhai Bapubhai.
This is further supported by the fact that under sub-clause(3) of clause 28 of the Order, which provides that where any fertiliser is seized by an Inspector under the said clause, he shall forthwith report the fact of such seizure to the Collector whereupon the provisions of section 6-A, 6-B, 6-C, 6-D and 6-E of the Act shall apply to the custody, disposal and confiscation of such fertilisers. In the facts of the present case, it is an admitted position, as revealed from the testimony of the Agriculture Inspector that no such report had been made to the Collector which creates a doubt about the credibility of the prosecution case that the stock of fertiliser in question had been seized from the shop of the accused.
23. As can be seen from the impugned judgment and order passed by the learned Special Judge, the learned Judge has discussed the evidence in great detail and has given cogent and convincing reasons and has recorded his conclusions point wise.
24. For the reasons recorded hereinabove, this court is in complete agreement with the reasoning adopted by the learned Special Judge and does not find any reason to take a different view. As held by the Supreme Court in the case of State of Goa vs. Sanjay Thakran and Another (supra), while exercising powers in an appeal against an order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. Duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of the material placed on record to find out whether any of the accused is connected with the commission of the offence he is charged with.
25. On an independent evaluation of the evidence on record, this court finds that the prosecution has failed to establish the charges levelled against the accused. In fact, the prosecution has not been able to establish even the basic charge that the accused were selling fertilizers from the shop in question. In the light of the above discussion, there is no warrant for intervention by this court. The appeal, therefore, fails and is, accordingly, dismissed.
(HARSHA DEVANI, J.) UMESH Page 21 of 21